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MARK CONGINI v. PORTERSVILLE VALVE COMPANY (12/30/83)

decided: December 30, 1983.

MARK CONGINI, A MINOR BY CARL J. CONGINI, HIS GUARDIAN, AND CARL J. CONGINI AND SYLVIA CONGINI, APPELLANTS,
v.
PORTERSVILLE VALVE COMPANY, A CORPORATION, APPELLEE



No. 53 Appeal Dkt. 1983, Appeal from the Order of the Superior Court dated April 22, 1983, at No. 842 Pittsburgh, 1980 affirming the Order of the Court of Common Pleas of Lawrence County, Civil Division, August Term, 1980, No. 1

COUNSEL

Clyde T. MacVay, Pittsburgh, Gilbert D. Levine, New Castle, for appellants.

Herman C. Kimpel, Pittsburgh, for appellee.

Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Roberts, C.j., files a concurring opinion. Larsen, J., concurs in the result. Zappala, J., files a dissenting opinion.

Author: Mcdermott

[ 504 Pa. Page 159]

OPINION OF THE COURT

This appeal arises from an action in trespass for personal injuries sustained by Mark Congini in an automobile accident which occurred on December 22, 1978. His parents instituted suit on his behalf, and on their own behalf, in the Court of Common Pleas of Lawrence County against the Portersville Valve Company (Portersville). The defendant filed preliminary objections in the nature of demurrer. The trial judge, the Honorable William R. Balph, sustained the preliminary objections and the Conginis' complaint was dismissed on August 18, 1980.

On appeal the Superior Court affirmed, relying in part on our decision in Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973).*fn1 Appellants petitioned this Court for allowance of appeal and we granted allocatur.

On demurrer we must accept as true all well pleaded facts and the reasonable inference therefrom. Sinn v. Burd, 486 Pa. 146, 149, 404 A.2d 672, 674 (1979). Thus for purposes of this appeal we are confronted with the following facts.

[ 504 Pa. Page 160]

At the time of the accident in question Mark Congini was eighteen (18) years of age and an employee of Portersville. On December 22, 1978 Portersville held a Christmas party for its employees at which alcoholic beverages were served. Mark attended the party and, as a result of consuming an undisclosed amount of alcohol, became intoxicated.

Mark's car was parked at Portersville plant, which was the scene of the party, and appellee, through one of its agents, had possession and custody of the car keys. Although Portersville's agent was aware of Mark's intoxicated condition, the keys were given to Mark upon his request so that he could drive from the plant to his home.

While Mark was operating the car on the highway, he drove it into the rear of another vehicle which was proceeding in the same direction. As a result of this accident Mark suffered multiple fractures and brain damage which have left him totally and permanently disabled.

In their appeal appellants have alleged several grounds of liability: first, that defendant was negligent in providing Mark with alcoholic beverages to the point that he became intoxicated; second, that defendant was negligent in surrendering the car keys to Mark, knowing that Mark was intoxicated and that he would drive; and third, that appellee, as a landowner, was negligent in breaching a duty owed to mark as an invitee. Appellants have not alleged that appellee was a licensee of the Pennsylvania Liquor Control Board.

The first issue before us is similar to that raised in Klein v. Raysinger, decided this day at 504 Pa. 141, 470 A.2d 507 (1983), i.e., the extent to which a social host can be held liable for injuries sustained by his guest to whom he has served intoxicating liquors. This case, however, differs in two respects: that the guest here was a minor; and that the plaintiff here is the guest to whom the intoxicants were served, rather than a third person injured by a person who was served alcoholic beverages. See Klein, id.

[ 504 Pa. Page 161]

As we note in Klein, our sister state jurisdictions are virtually unanimous in refusing to extend common law liability to an adult social host serving intoxicants to his adult guests. Id., 504 Pa. at 148, 470 A.2d at 510 (collected cases). However, there is no such unanimity in cases where an adult host has knowingly served intoxicants to a minor. See Burke v. Superior Court, 129 Cal.App.3d 570, 181 Cal.Rptr. 149 (1982); Brockett v. Kitchen Boyd Motor Company, 24 Cal.App.3d 87, 100 Cal.Rptr. 752 (1972); Brattain v. Herron, 159 Ind.App. 663, 309 N.E.2d 150 (1974); Thaut v. Finley, 50 Mich.App. 611, 213 N.W.2d 820 (1973); Linn v. Rand, 140 N.J.Super. 212, 356 A.2d 15 (App.Div. 1976).

In Klein v. Raysinger, supra, we held that there exists no common law liability on the part of a social host for the service of intoxicants to his adult guests. In arriving at this decision we relied upon the common law rule that in the case of an ordinary able bodied man, it is the consumption of alcohol rather than the furnishing thereof, that is the proximate cause of any subsequent damage.

However, our legislature has made a legislative judgment that persons under twenty-one years of age are incompetent to handle alcohol. Under Section 6308 of the Crimes Code*fn2 18 Pa.C.S. § 6308, a person "less than 21 years of age" commits a summary offense if he "attempts to purchase, purchases, consumes, possesses or transports any alcohol, liquor or malt or brewed beverages." Furthermore, under Section 306 of the Crimes Code, 18 Pa.C.S.A. § 306, an adult who furnishes liquor to a minor would be liable as an accomplice to the same extent as the offending minor.

This legislative judgment compels a different result than Klein, for here we are not dealing with ordinary able bodied men. Rather, we are confronted with persons who are, at least in the eyes of the law, incompetent to handle the affects of alcohol. Accord, Burke v. Superior Court, supra, 129 Cal.App.3d at 575, 18 Cal.Rptr. at 151; Thaut v. Finley, supra (1974); Lover v. Sampson, 44 Mich.App. 173,

[ 504 Pa. Page 162205]

N.W.2d 69 (1972). See Davis v. Shiappocossee, 155 So.2d 365 (Fla. 1963); Chausse v. Southland Corp., La.App., 400 So.2d 1199 (1981) cert. denied, La., 404 So.2d 497 (1981); Munford, Inc. v. Peterson, Miss., 368 So.2d 213 (1979); Wiener Gamma Phi Chapter of Alpha Tau Omega Fraternity, 258 Or. 632, 485 P.2d 18 (1971). See also, Cantor v. Anderson, 126 Cal.App.3d 124, 178 Cal.Rptr. 540 (1981).

Section 286 of the Restatement of Torts Second provides:

§ 286. When Standard of Conduct Defined by Legislation or Regulation Will Be Adopted

The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose ...


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